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NMCCA decisions

September 3, 2010 | The Law Office of Philip D. Cave

NMCCA has released a number of decisions. Several have providency issues and issues not raised by appellate counsel.

United States v. Messias. The court set-aside a finding of guilty to because of an inadequate providence inquiry. No sentence relief granted.

While the providence inquiry establishes facts sufficient to demonstrate that the appellant drove on base and that he believed the driving to be wrongful, there are no facts developed which establish either the invalidity of the appellant’s license, if any, or in the alternative, his failure to have a valid license in his possession. We cannot infer either eventuality from this record. We are left with a substantial basis in fact to question this plea and conclude the military judge abused his discretion in accepting this plea on these facts.

Coast Guard certified issues to CAAF

August 20, 2010 | The Law Office of Philip D. Cave

The Coast Guard has certified the following issues to CAAF.

No. 10-6010/CG. U. S., Appellant v. ANDREW L. DALY, Appellee. CCA 001-62-10. Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED IN APPLYIING THE STANDARD OF FAIR NOTICE, AS OPPOSED TO MISTAKE OF LAW, IN AFFIRMING THE MILITARY JUDGE’S FINDING THAT, UNDER COAST GUARD REGULATIONS, THE ACCUSED WOULD NOT HAVE KNOWN HIS CONDUCT WAS CRIMINAL AND THEREFORE HE COULD NOT BE PUNISHED UNDE ARTICLE 134, UCMJ.

Some quick reminders about guilty pleas and such

July 31, 2010 | The Law Office of Philip D. Cave

There’s something for everyone out of a number of Navy and Coast Guard cases.

Defense Counsel.

When the military judge wrongly announces a sentence which will inure to your client’s benefit, generally you should keep you mouth shut. But, once you get the SJAR, double check the SJAR against the record. See United States v. Spears below. My perception is there is an increase in the number of error in SJAR’s which the trial defense counsel has failed to comment on. I posted on United States v. Newby yesterday. So what you say, he got relief, good for him. The appellant in Spears will now have a lot of trouble dealing with DFAS to get back the unauthorized forfeitures that’s the problem now. Whereas if the issue had been caught at the time of the SJAR it might have been easier to resolve. Yes I know there are many SJA’s out there who would have pressed forward with the erroneous advice anyway.

Nerad decided at CAAF

July 27, 2010 | The Law Office of Philip D. Cave

CAAF has issued an opinion in United States v. Nerad. RYAN, J., delivered the opinion of the Court, in which EFFRON, C.J., and ERDMANN, J., joined. BAKER, J., filed a separate opinion concurring in the result. STUCKY, J., filed a separate dissenting opinion.

Nerad gets a remand to AFCCA for the court to clarify it’s ruling.

NMCCA sets aside a rape conviction

July 6, 2010 | The Law Office of Philip D. Cave

United States v. Ruiz should sound familiar to most defense counsel – the basic facts that is. An adultery case becomes a rape allegation.

In particular I recommend:

Reporting the Alleged Rape
On the night of the alleged rape, after returning to the barracks, AN P did not report the rape or tell anyone what happened. Id. at 548. Seaman (SN) M testified, contrary to AN P’s testimony, that the next day, a smiling AN P pulled him aside, told him “we did it,” and explained that she and the
appellant had feelings for each other. Id. at 1146. In the next few days, AN P discovered that rumors were spreading about her being in a hotel room with the appellant. Id. at 552, 570, 592. SN C testified that he had previously counseled AN P when she told him she “liked” the appellant, a married man. Id. at 551, 676, 688. When he confronted her with the new rumors and she explained her version of events, he reported it to the command. Id. at 683. AN P testified that she would not report it because she was afraid she would get into trouble or be kicked out of the Navy for being in a hotel room with a married man. Id. at 552-55, 572, 683. AN P testified that about a week after the alleged rape, upon learning she would not get in trouble as long as she was not “cooperating” with the appellant, she reported the incident, when confronted by a SAVI advocate, a chief, and a member of law enforcement. Id. at 572. The manner in which the rape was reported raises further doubt as to why AN P made the accusation.

Finding no dramatic change

July 4, 2010 | The Law Office of Philip D. Cave

In United States v. Morton, ACCA on remand from CAAF found no “dramatic change in the penalty landscape” and affirmed the sentence imposed at trial.

On first review ACCA had set-aside two specifications regarding a falsification of a sick-slip under Article 123, UCMJ. But ACCA then affirmed two specifications thought to be closely related to the dismissed specifications. CAAF dismissed the two specifications and said that:

By dismissing those specifications, our superior court rang the death knell of the “closely-related offense” doctrine. United States v. Morton, 69 M.J. 12, 13 (C.A.A.F. 2010). Also as part of their decision, our superior court returned the record of trial to The Judge Advocate General for remand to this court for sentence reassessment.

All too common

June 29, 2010 | The Law Office of Philip D. Cave

CAAF has decided: United States v. Contreras, No. 09-0754/AF

We granted review of the following issue:

WHETHER THE HOUSEBREAKING CHARGE SHOULD BE SET ASIDE BECAUSE THE UNDERLYING CRIMINAL OFFENSE, INDECENT ACTS WITH ANOTHER UNDER ARTICLE 134, UCMJ, IS A PURELY MILITARY OFFENSE.

U. S. v. Roach-CAAF

May 10, 2010 | The Law Office of Philip D. Cave

United States v. Roach has been returned to AFCCA for a second time.

Initially the case was sent back because appellant’s case was decided before his counsel submitted a brief, and because the chief judge on his panel had made some public comments relating to the case.

This time the case goes back because the chief judge also recommended his temporary successor for the Roach case, thus violating the principal that a recused judge should have no further contact with the case.

CAAF decides ‘self-report’ case

May 6, 2010 | The Law Office of Philip D. Cave

In United States v. Serianne __ M.J. ___ (C.A.A.F. 2010), CAAF affirmed NMCCA’s dismissal of a charge that Chief Serianne failed to inform his command of a civilian conviction. Here is a link to the en banc opinion on an Article 62(b) interlocutory appeal by the government in Serianne, at NMCCA.

On its face the decision has narrow application to a particular Navy instruction. However, the case may impact any revision of the Navy instruction and also the directive that DoD initiated in 2008 on the subject of E-6 and above reporting their civilian convictions.

I have posted before about an April 2008 policy memorandum issues by DoD. The memorandum will require self-reporting of certain civilian convictions.

NMCCA decision

April 29, 2010 | The Law Office of Philip D. Cave

United States v. Holmes.

On direct appeal the NMCCA set aside the original findings of guilty to negligent homicide and the sentence.

A rehearing on sentence was authorized for the remaining guilty finding of false official statement.